South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper

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1 South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper

2 Contents Foreword Page 03 South Australia s Compulsory Third Party Insurance (CTP) Scheme Page 04 Issues confronting South Australia s CTP scheme Page 05 Scheme fairness Page 06 Scheme outcomes Page 08 Scheme affordability Page 11 Fault versus no-fault based insurance schemes Page 12 The national injury insurance scheme proposal Page 14 Potential reform options for scheme design Page 15 Option 1 No-fault cover for catastrophic injuries Page 15 Option 2 A no-fault catastrophic injury scheme combined with a reformed fault-based scheme for non-catastrophic injuries Page 17 Option 3 Fully no-fault scheme Page 20 Summary of impact of premium for each of the options Page 22 Scheme management issues Page 23 Some questions for consideration and feedback Page 24 Invitation to comment Page 25 Attachment 1 Whole Person Impairment (WPI) Page 26 Attachment 2 comparison of fault and no-fault schemes Page 30 South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 02

3 Foreword Despite our best road safety efforts, thousands of South Australians are injured in road crashes every year. The injuries can cause financial losses, such as time off work and treatment expenses, and sometimes leave the person permanently disabled, affecting their earning power. In severe cases, the person may need long-term care such as home nursing or having to live in supported accommodation. Altogether, these losses are very costly. In most cases, the driver who causes the crash could not afford to pay for the damage done. This is why, since 1936, South Australia has had a Compulsory Third Party (CTP) insurance scheme. When you register your motor vehicle, most of the cost of registration is your annual CTP premium, covering you against the risk that you cause a crash that injures someone. The scheme is not well known and many people only find out about it if they are involved in a crash. Some are surprised to find that the scheme does not cover all crashes. It only applies where the injured person can show that the crash was another driver s fault. For instance, if you are injured because another driver runs a red light or overtakes on a blind corner, you can claim on the scheme. If you are injured because you fall asleep at the wheel and hit a tree, you cannot. Some people find this fair (if you caused the crash, why should you be compensated?) but others disagree (why should the scheme not meet the needs of everyone seriously injured on the roads?). All Australian states have CTP schemes of some sort, but not all of them work like ours. In some, you can claim even if the crash was your fault. Comparing the premiums around Australia, these no-fault schemes do not necessarily cost more. The South Australian CTP premium is currently among the more expensive in Australia. This is because the cost depends as much on the benefits provided as it does on the type of scheme. The Government believes it is time to look at our scheme again. Recently, the Productivity Commission has reported about the possibility of a national no-fault scheme to provide long-term care for people who suffer catastrophic injuries. The Council of Australian Governments (COAG) is now looking into this. In turn, the South Australian Government is considering reforms to improve the fairness and cost-effectiveness of our CTP scheme. Achieving better recovery, rehabilitation and ongoing care and support outcomes for injured motorists is a key focus for this review. As a first step, this paper outlines options and invites your comments. Details of the closing date and how you can comment appear at the end of the paper. I look forward to hearing from you about how we can improve our scheme for the benefit of all South Australians. Jack Snelling Treasurer South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 03

4 South Australia s Compulsory Third Party Insurance (CTP) Scheme Our present CTP scheme looks like this: Injured persons can only claim on the scheme if they can prove that the accident was the fault of the driver of a South Australian vehicle. If the injured person and the claims agent cannot reach agreement about the amount of compensation, there is a court case. The court applies the rules in the Civil Liability Act, which set some limits to the compensation. It also looks at what compensation has been awarded in previous similar cases. There are many road-accident injury cases before the South Australian courts at any given time. Normally, the loser of the court case pays a large part of the winner s legal fees. If the claim succeeds, both the compensation and the legal fees come from the CTP insurance. Normally, the compensation is a once-off lump sum payment. Compensation includes: The compensation and the associated legal expenses are paid mainly from the CTP premiums charged on the 1.3 million vehicles garaged and registered in South Australia. The CTP premium is the largest component of the fees paid when registering your motor vehicle. There are around 6000 claims made against the scheme each year. Total benefits paid by the scheme to injured persons were $361 million in the financial year. Around 44% of the claims involve reimbursing people only for the medical expenses that they incur, but these claims account for only 3% of the payments. However, there are other minor claims 1 that receive broader compensation for pain and suffering, medical treatment or future financial loss; these claims account for around 30% of the payments, which amount to more than $105 million per annum. The remaining 67% of claims payments are for people who are more seriously injured, have lost time from work and receive compensation for pain and suffering, future financial losses and care costs. past and future medical expenses, income loss and ongoing care costs; and a payment for the person s pain and suffering, worked out on a scale that allocates a fixed dollar amount depending on the severity of the injury. The driver at fault pays the CTP scheme an excess of $480 if they are more than 25% at fault. 1 A minor claim is defined as a claim where the individual has sustained a minor injury that requires very little medical treatment, generally requires less than a week off work and may be assisted by some physiotherapy. The majority of minor injuries include bruising, minor abrasions, sprains and strains, soft tissue injuries including whiplash. All of these injuries are coded with either a 2005 Abbreviated Injury Scale (AIS) injury severity of 1 or 9. The AIS severity of 1 indicates that this is a minor injury of a temporary nature that will tend to resolve without permanent residual impairment. An AIS severity of 9 indicates there is no codable injury reported in the medical report; that is, there is no evidence of injury. The 2005 AIS is an internationally recognised coding system used in a variety of health and trauma organisations. The AIS Injury Codes are based on medical evidence and isolate those injuries which are deemed to be a direct result of the trauma of the accident. Each injury is assigned a numerical code from the 2005 AIS dictionary, which indicates the nature, location, and severity of the injury. South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 04

5 Issues confronting South Australia s CTP scheme The issues for the current CTP scheme are set out in this section, under three headings: 1. Scheme fairness is the distribution of benefits amongst injured persons equitable? 2. Scheme outcomes does the scheme deliver the best recovery, rehabilitation and ongoing care and support outcomes for injured motorists? Is the premium used as efficiently as possible? 3. Scheme affordability our CTP premiums are expensive compared to other states. Also, it is likely we will need premium increases above CPI to keep the scheme going. South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 05

6 Issues confronting South Australia s CTP scheme Continued Scheme fairness 1. The current scheme does not cover all people injured in motor accidents. Our CTP scheme is fault-based. Compensation is available only to those who prove their injury was wholly or partly someone else s fault. This means many injured people are not compensated. In some cases, the accident is no-one s fault. It might be caused by an unpredictable mechanical failure of the car or by a driver s heart attack or stroke at the wheel. In other cases, it is the injured person s own fault; for example, if the accident occurred due to the driver s inattention, perhaps because they were changing the radio channel or were distracted by children in the back seat. There is no compensation for this. If the CTP scheme is not available, the injured person must rely on any disability insurance they have bought, and on the Medicare and Centrelink systems. About 20% to 25% of injured road users are not compensated under the current CTP scheme because they were not injured through someone else s fault. The figure is thought to be around 30% in catastrophic cases, which require long-term care and support, such as spinal and brain injuries. The burden of care in these circumstances falls on the taxpayer and on loved ones. The following case study provides an example: no one injured in this accident was compensated by the CTP scheme. Example 1 A husband with two young children is driving along a sealed country road. Travelling at the speed limit, suddenly a kangaroo jumped out from the side of the road colliding with the front passenger s side of the vehicle and through the windscreen into the car. The driver s head and upper body was hit with force. The car swerved out of control and left the road hitting a tree. The driver sustained critical head and internal injuries. After being in hospital for many months he was transferred to a rehabilitation centre with catastrophic brain injuries. He will never recover from these injuries and requires ongoing daily care to function. He will never work again and his wife has been left to look after him and the children. They experience ongoing financial hardship and rely on a disability pension for basic survival. This man is not covered by CTP insurance as there is no other party at fault. Example 2 A young motorcyclist is riding to work on a main arterial road in Adelaide. Wearing his helmet, protective clothing and travelling within the speed limit, he has a moment of inattention and loses control of his bike. He slides with the motorbike and hits a bollard. He suffers instant spinal injuries, paralysed from the neck down, his life is changed instantly. He was independent prior to the accident buying his own home, achieving his work goals, enjoying his social life. After extensive hospital and rehabilitation he moved back to his parent s home, who provide his primary care. He also has care through State based disability services. This man is not covered by CTP insurance as there is no other person at fault. South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 06

7 Issues confronting South Australia s CTP scheme Continued 2. The current scheme spends more of its available resources on minor claims. Most of the accidents on South Australian roads produce only minor injuries. Fortunately, accidents that cause very severe injuries are few. This means that much of the work of the system is dealing with small claims. Even a small claim can be expensive to process. For instance, there may be a dispute about who was at fault, with witnesses giving different accounts. The process of investigating what happened is just as great, even if the injuries are minor. Costs can also escalate if there is a dispute about whether the injuries were really caused by the accident. If the person already had an injury or disability, a dispute may arise as to how much effect the accident had. If the parties engage lawyers, that also adds to the cost. For these reasons, a good deal of the scheme s money is spent on cases of minor injury. Of all claims paid since July 2009, nearly three-quarters (72%) had a claimant benefit amount of $50,000 or less. For these claims: 75% had no time lost from work 84% had less than $2,000 in treatment expenses Over 66% of claimants were represented by solicitors The average total claim payment was $24,000 including legal fees The average fees paid to the claimant s solicitors was $5,000 The cost to the scheme for minor claims 2 is over $105 million per annum. Example 3 The claimant was sideswiped by another car travelling at slow speed. There was minor damage to the claimant s car. The claimant was a young man who was employed as a tradesman. He didn t report to his General Practitioner and never took time off work. A solicitor lodged a claim on his behalf two months later. He had three General Practitioner visits between this claim lodgement and final settlement three years later. He had not other medical treatment. He would be diagnosed with minor soft tissue injuries. Both Plaintiff and Defendant medical reports received during the claim indicated he had no change in work capacity or any permanent residual impairment. The claim settled for over $50,000 including pain and suffering, future economic loss of chance, superannuation and plaintiff solicitor costs. 2 See footnote 1 South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 07

8 Issues confronting South Australia s CTP scheme Continued Scheme outcomes 1. Recovery, rehabilitation and ongoing care and support. There is, understandably, a major focus on the financial aspects of CTP schemes. However, financial costs are not the only costs of injuries. A key focus of any compensation scheme should be to get the best possible recovery and rehabilitation outcomes for injured people. These outcomes are physical, psychological and emotional. They are relevant not just to the injured party, but also to their family and employer. Questions are sometimes asked about whether the scheme design works against good recovery outcomes. The design of the current CTP scheme does not focus on rehabilitation but on monetary compensation. Also, people with severe injuries may miss out on compensation entirely or receive lump sum payments which, while large, may turn out to be inadequate to fund their lifetime care needs. There is some evidence that recovery outcomes are linked to whether compensation is paid and to the type of scheme, particularly for minor injuries. Paying compensation in itself can be linked to worse outcomes. Yang et al. (2010) found that people with a minor to moderate severity injury who do not receive compensation for work-related or vehicle-related injuries are more likely to have better physical and psychological health outcomes 12 months after the accident than those who receive compensation. 3 The claim process can also be stressful. In 2011, Murgatroyd et al. 4 undertook focus group work with 34 people in New South Wales injured in accidents between 2002 and Of those, 21 had compensation claims and 13 did not. Claimants identified a number of themes including: an adversarial, stressful claims and settlement process, an inability to move on with life during the claims process, and an extreme dislike of medicolegal assessments. The authors reported the injury recovery experience was diffi cult for all subjects, but it was particularly stressful for those claiming compensation. Schemes that include lump sum payments may be associated with worse outcomes. A study following the outcomes of over 1000 WorkCover claimants in New South Wales receiving compensation showed that those who were paid lump sums had poorer health outcomes and worse return to work rates than those who received weekly benefits. 5 It may be that lump sum payments for pain and suffering, in particular, go along with a higher rate of claim, slower processing and poorer recovery. In Saskatchewan, Canada, in 1995, the law changed from a fault-based compensation system with payments for pain and suffering, to a no-fault system without such payments. In 2000, Cassidy et al. 6 compared outcomes for whiplash injury patients who made insurance claims in the last six months of the old system with two other groups: those claiming in the first six months and those claiming in the second six months of the new system. The researchers found a decrease in claims (by 43% for males and 15% for females) between the old and new systems, as well as in the time taken from injury to claim closure. Further, they found that the intensity of neck pain, the level of physical functioning, and the presence or absence of depressive symptoms were strongly associated with the time to claim closure in both systems. They concluded that: The elimination of compensation for pain and suffering is associated with a decreased incidence and improved prognosis of whiplash injury. In 2008, Cameron et al. 7 reported on the effects of a change in the law in New South Wales that removed pain and suffering payments for whiplash and changed regulations to permit earlier acceptance of compensation claims. They concluded that the health of people with whiplash improved under the new law. At the higher end of the injury scale, the same issues 3 Yang Z, et al. Factors that predict poor outcomes in patients with traumatic vertebral body fractures. Injury: International Journal of the Care of the Injured 41 (2010) 4 Murgatroyd DF, Cameron ID, Harris IA Understanding the effect of compensation on recovery from severe motor vehicle crash injuries: a qualitative study. Inj Prev (BMJ) : PriceWaterhouseCoopers. WorkCover NSW Health, social and economic outcomes associated with different compensation pathways, Cassidy JD, Carroll LJ, Cote P et al. Effect of Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for Whiplash Injury. NEJM (16): South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 08

9 Issues confronting South Australia s CTP scheme Continued apply, including the stress due to delay in payment. These stresses affect not just the injured party, but also their loved ones. Improvement in this area will thus have a multiplying effect within the community. There is also the risk to the injured person that the lump sum paid proves inadequate and the risk to the scheme that it is too high. In catastrophic cases, the CTP scheme pays large lump sums to cover expected future care. The amount is based on a number of factors, including: (a) predictions of the claimant s use of various care services in the future and the current cost of those services (b) predictions of the claimant s expected lifespan; and 7, 8, 9 injuries and their reduced capacity to work. If a compensation sum turns out to be inadequate for long-term care needs, or if it is used for other purposes, then taxpayer-funded health, disability and welfare services, or the voluntary services of family and friends, may be needed to fill the gap. Where this occurs, it calls into question the efficiency of a compensation scheme that does not provide adequate lifetime care and support. Achieving improved recovery, rehabilitation and ongoing care and support outcomes is a major focus of the Government s review of the CTP scheme. The challenge is to do this in a cost-effective way. (c) the discount rate which is applied to convert the predicted future costs into a current lump sum. Neither (a) nor (b) can be known for sure. The claimant might live much longer or die much sooner than expected, and predictions of future requirements are particularly uncertain with younger claimants, who are a significant proportion of the catastrophically injured. Therefore, the amount paid may ultimately prove to be much more or less than the actual amount required. Another problem with paying a lump sum is that it may not be well managed or may not be used as intended. About 25% to 30% of all accident victims spend the whole lump sum within two months of payment and 90% spend it all within five years. As a result, many people with long-term disabilities become reliant on social security benefits. In addition, recipient satisfaction reduces considerably over time after payment, due to the long-term ill effects of their 7 Colin Bass Human Resources, Lump Sum Accident Compensation (Consultancy Papers 1, 1983). 8 Neave M, Howell L. Adequacy of Common Law Damages. Adelaide Law Review Research Paper No. 5. The University of Adelaide: Adelaide Law Review Association, United Kingdom Law Commission. Personal injury compensation How much is enough? 1994 South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 09

10 Issues confronting South Australia s CTP scheme Continued 2. The proportion of the premium spent on compensation. The average break-even CTP premium in the current year is $423. Of this amount: $270 (64%) is spent on direct benefits including compensation for medical treatment, for care, for loss of income and pain and suffering; $59 (14%) is paid for costs such as legal representation and medical reports, to establish the value of a claim; $94 (22%) goes towards road safety campaigns, reinsurance, scheme and claims administration costs, premium collection fees and other expenses. Premium is of course influenced by the cost of claims. The key cost exposure for the current scheme is the volume of minor claims received. South Australia s CTP scheme is very claim-prone. Our rate of claims per vehicle is 140% higher than Queensland and 64% higher than New South Wales, even though we have less serious injuries per vehicle than occur in those states. One reason is that there is no minimum harm required to make a claim. Another reason for high cost is that, even in fairly small claims, lawyers are often used. Claimants have hired lawyers in around 75% of active claims. As can be seen in the graph below, approximately $44 million was paid in 2011 to claimant solicitors from the CTP fund. This cost has nearly doubled from 2005 to Figure 1. Plaintiff legal costs from 2005 to 2011 $45,000,000 $40,000,000 $35,000,000 $30,000,000 $25,000,000 The graph below shows a decline over the past five years in the percentage of the premium directly benefitting injured accident victims. This highlights the growing legal, medico-legal, investigation and other costs. Figure 2. Proportion of total expenditure paid for direct benefit of claimant (excluding legal costs) 86.0% 84.0% 82.0% 80.0% 78.0% JUL 06 NOV 06 MAR 07 JUL 07 NOV 07 MAR 08 JUL 08 NOV 08 MAR 09 JUL 09 NOV 09 MAR 10 JUL 10 NOV 10 MAR 11 JUL 11 However, measures recently foreshadowed by the Attorney-General to change the jurisdictional limits in the small claims and magistrates courts may act to moderate future increases in legal costs incurred in these matters. Raising the limits may mean some claims move down from the District Court to the Magistrates Court and some move from the general into the small claims jurisdiction. Usually, in a small claim, parties cannot have legal representation and no orders for costs are made. In the Magistrates Court, costs claimable by a winning party against a losing party are calculated at a lower rate than in the District Court. Note however that these amendments have yet to pass the Parliament and that it is a matter for the plaintiff, and his legal advisers, to determine in what jurisdiction the claim will be lodged. $20,000,000 $15,000,000 $10,000, South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 10

11 Issues confronting South Australia s CTP scheme Continued Scheme affordability The cost of CTP insurance should not become an excessive financial burden on South Australian households. The higher the premium, the greater the risk that drivers will fail to insure and the scheme will not collect enough money to remain viable. The South Australian CTP premium is the more expensive of its type in Australia. It: is the more expensive premium compared to other fault-based CTP schemes, such as Queensland and Western Australia. It is more expensive than all states on a dollar-for-dollar basis except for New South Wales, which includes a no-fault component providing lifetime care for catastrophic injuries, and the ACT. is the least affordable premium of all Australian states and territories CTP schemes when compared to average weekly earnings; and has experienced the fastest rate of premium growth of all states over the past 10 years averaging increases of 5.4% per annum. The Queensland and Western Australian schemes, also fault-based, have experienced growth rates of 0.6% and 1.0% per year respectively in the same period. Table 1 compares South Australia s CTP premiums against all Australian CTP schemes. Table 1. Comparison of Australian State and Territory Metropolitan Private Passenger vehicle premiums effective as at 1 October 2011, their affordability as a percentage of State average weekly earnings and the average annual increase over the past 10 years. Scheme type Effective premium (metropolitan private passenger vehicles) Class 1 premium as % of State average weekly earnings i Average compound increase over past 10 years SA Fault-based (common law) government underwriting, outsourced claims management $ % 5.4% NSW Partly-fault, No-fault lifetime care (catastrophic and under 16), private underwriting (including claims management) of fault-based component $ (including lifetime care levy) 36.1% 3.8% ii NT No-fault, government underwriting and internal claims management $ % 3.1% ACT Fault-based, private underwriting (including claims management) $ % 2.0% VIC No-fault with restricted common law (hybrid), government underwriting and internal claims management $ % 3.9% TAS No-fault, government underwriting and internal claims management $ % 2.0% QLD Fault-based, private underwriting (including claims management) $ % 0.6% iii WA Fault-based, government underwriting and internal claims management $ % 1.0% It is predicted that the premium will have to increase by about 5% per year on average if there is no change to the current scheme. i State average weekly earnings are based on ABS Male Adult Full-time ordinary earnings March 2011 and State premiums as at 1 October 2011 ii NSW incorporated the No-fault Lifetime Care Scheme and common law amendments in 2006 causing overall increases in premium plus LTCS levy iii Queensland enacted tort reforms in 2003 to address common law scheme design South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 11

12 Fault versus no-fault based insurance schemes There is continuing debate in Australia over the benefits of no-fault injury insurance schemes. Most recently, the Productivity Commission Inquiry into Disability Care and Support recommended a no-fault National Injury Insurance Scheme for catastrophic injuries. Federal and state governments have agreed to work together to consider the Productivity Commission s recommendations in this area which, as a first step, suggested the creation of Australia-wide no-fault catastrophic motor accident insurance schemes by The Productivity Commission found that no-fault injury insurance schemes are superior to fault-based schemes for catastrophic injuries (see Box 1 below). Box 1: Productivity Commission findings regarding insurance arrangements for catastrophic injury. Existing fault-based insurance arrangements for catastrophic injury do not meet people s care costs efficiently. Legal costs can be substantial, and for the fraction of claims compensable through insurance, monies recovered often fall well short of meeting people s lifetime needs. Fault-based systems are also problematic because: court outcomes are uncertain, people s future needs are unpredictable and poorly captured by a once-andfor-all lump sum, compensation is often delayed, and there is a risk that lump sums are mismanaged adversarial processes and delay may hamper effective recovery and health outcomes in the presence of insurance, especially with little focus on risk-rating for some causes of injury, the common law does not provide incentives for prudent behaviour by motorists and other parties. While no-fault arrangements reduce people s freedom to the extent (some) common law rights are removed, they are likely to produce generally superior outcomes compared with fault-based common law systems. They: provide consistent coverage across injured parties according to injury related needs provide much more predictable and coordinated care and support over a person s lifetime do not adversely affect people s incentives to improve their functioning following an injury are likely to be more efficient currently perform no worse at deterring excessively risky behaviour, as, despite the appearance of the common law, it is the insurer that pays. And although no-fault arrangements would probably not meet all people s desire for punishment of an at-fault party, there is no clear evidence that the common law achieves this either. Source: Productivity Commission Inquiry Report, Disability Care and Support, 31 July 2011, page 789 South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 12

13 Fault versus no-fault based insurance schemes Continued As well as extending compensation to more people, nofault schemes are different in other ways. In fault-based schemes, a court usually decides whether claimants are entitled to compensation and how much. In no-fault schemes, entitlements are usually fixed by law. No-fault schemes tend to provide support or payments until they are no longer required. Fault-based schemes usually provide a lump sum payment. The type of scheme that delivers a lower premium depends on the benefits delivered (as well as the frequency and seriousness of accidents). The no-fault schemes in Victoria and Tasmania, for example, have lower premiums than the South Australian scheme. In Victoria, this is mainly due to the restricted access to benefits for minor injuries. Queensland and Western Australia also have lower premiums than South Australia even though they have fault-based schemes, again because of limits on benefits. New South Wales has a restricted form of no-fault insurance cover, limited to catastrophic injuries and providing for care and support, not for other losses such as income. The care and support needs for catastrophically injured claimants are managed on a social support approach through the New South Wales Lifetime Care and Support Authority. Fault-based schemes have built-in delays in payments. First, it may take some time to establish how the accident happened and who, if anyone, was at fault and in what proportions. Secondly, fault-based schemes usually pay a once-off lump sum. This means waiting until the injuries are stable (that is, the patient s condition will not change much more), so that the payment amount can be decided. Third, because benefits are not fixed by law, there may be some dispute over what would be a fair payment. Consequently, claims made in fault schemes such as ours take between 18 months and 3 years on average to complete. That means that in fault-based schemes there is a significant delay before people are compensated for any financial loss, whereas in no-fault schemes, claimants have immediate access. Schemes that use periodic payments reduce this delay, and payment is based on actual needs as they occur rather than on a once-off prediction of future losses. Periodic payments can also reduce anxiety for families about ongoing care needs. Where a once-off lump sum is paid, there is the fear that it may run out, while periodic payments continue during incapacity. Also, with a lump sum, the family may have to act as carers and case managers for the ongoing needs of the injured person. Examples have been cited of elderly parents now acting in this capacity for adult children. Their fears of what will happen when I die? are real concerns for the ongoing support and care of their loved ones. With lump sums, there is also the risk that they are wasted or turn out to be inadequate. In that case, demand is thrown onto the public health, disability and welfare systems, at taxpayer expense. In a nofault scheme, periodic payments reduce this risk and compensating more injured people also reduces the burden on the public system. The current South Australian scheme allows for the compensation sum to be converted to a periodic payment arrangement called a structured settlement. However, this is optional and is rarely taken up, partly because it causes complications related to taxation implications. Another benefit of no-fault insurance arrangements is that the legal and investigation costs are reduced, which can in turn reduce the premium paid by motorists. No-fault periodic payment schemes therefore offer some advantages. However, there are aspects of the current system that some stakeholders are likely to view as desirable and which would be lost under a no-fault scheme. These aspects include: It allows claimants the choice to sue for and seek an amount that they believe reflects their individual injuries, costs and financial losses, and to receive a payment that they can spend as they see fit. A lump-sum payment finalises the claim for compensation, allowing the claimant to psychologically move on with their life. There may be a risk that a periodic payment system works against recovery and return to work. South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 13

14 Fault versus no-fault based insurance schemes Continued Not all injured people who miss out on benefits because of the fault requirement are necessarily blameworthy. Often, the injury is due to a momentary loss of attention, or to confusion or mistakes where drivers are travelling on unfamiliar roads or in difficult conditions. However, some cases are due to serious wrongdoing by the injured person. Some people might think that a person whose injuries are their own fault should not be entitled to the same benefits as those whose injuries are not their fault, particularly where the fault was more than just carelessness; for example, drink driving, failing to wear a seatbelt or intentional self-harm. A no-fault scheme has to grapple with how these cases should be treated. Therefore, one issue for a no-fault scheme to consider is whether to reduce benefit entitlements for people injured by their own serious wrongdoing. While penalties such as loss of licence, fines or even jail may apply, the community may not favour providing benefits, or equal benefits, to an injured wrongdoer. In some cases, the injured person may have injured or killed someone else. In the Victorian no-fault scheme, drivers convicted of dangerous driving causing death or serious injury are not entitled to compensation. However, if they are seriously injured, they are eligible for medical treatment and related care services. Those convicted of driving under the influence of alcohol or drugs, driving without a licence, stealing the vehicle or using it to escape police are not eligible for income replacement. However, if a driver who engaged in a reckless or illegal act suffers a catastrophic injury requiring lifetime care and support and is not eligible for compensation under a no-fault insurance scheme, it would mean that taxpayers and family members are likely to bear the burden of supporting the injured person over their lifetime. It may be preferable for the insurance scheme to meet those costs. As the Productivity Commission Inquiry Report stated:..consider the most negligent of cases, say a highly intoxicated young man, driving an unregistered vehicle at speed who severely injures both himself and the innocent party. Most people would regard it as repugnant to leave the at-fault young man without any support (surgery, rehabilitation a wheelchair), accepting the legitimacy of meeting some basic level of need for services. Under current fault based arrangements, a generally inadequate level of support would be provided through the general disability system and the social welfare system, with the gap in injury-related needs filled by family, charity and other informal arrangements. So ultimately, the at-fault party would get by, albeit mainly relying on taxpayer-funded health and disability services and transferring a significant proportion of their injury-related costs to other parties providing informal supports. 10 Nevertheless, there may be merit in these instances in denying access to some forms of compensation such as income support and pain and suffering payments. 10 Productivity Commission Inquiry Report, Disability Care and Support, 31 July 2011 page 829 South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 14

15 The national injury insurance scheme proposal The Productivity Commission has proposed that no-fault insurance cover be introduced to provide care and support to those who suffer catastrophic injuries. COAG has agreed to investigate this proposal. The most common forms of catastrophic injury are severe brain injury and spinal cord injury, which give rise to lifetime needs for care and support. People experiencing multiple amputations, severe burns or blindness may also require such support. Accident compensation schemes in some other jurisdictions (such as Victoria, New South Wales and New Zealand) have well established definitions and assessment tools for catastrophic injury. The management of support for those suffering catastrophic injury would be ongoing. This differs from the present system whereby the MAC has no relationship with the claimant once their lump sum is paid. The ongoing support would be provided to all of those who suffer catastrophic injuries regardless of who was at fault and would be based on their individually assessed needs. South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 15

16 Potential reform options for scheme design Against this background, the Government is looking at how to improve our CTP scheme. In particular, this paper invites comment on the merits of reforms to: improve the fairness of the scheme by extending compensation entitlements to some or all injuries regardless of fault rebalance the compensation amounts as between those who are more severely injured and those who suffer minor injuries ensure that funds devoted to compensating injured motorists are maximised, used as intended and achieve the best health, recovery and rehabilitation outcomes possible keep premiums affordable both now and into the future. The Government considers that there may be merit in some form of no-fault insurance cover, particularly for those experiencing catastrophic injuries in motor vehicle accidents. This is largely on the grounds of fairness and to improve the recovery and rehabilitation of catastrophically injured road users and their families, particularly those who do not receive assistance under the current scheme. A major concern for a no-fault scheme for catastrophic injuries is the cost it will add to the premium if no other changes are made. Given the already high premiums in South Australia, the Government is concerned that a further increase would strain household budgets. However, the Government is also keen to see the CTP scheme positioned to better support the longterm health and wellbeing of injured accident victims, particularly those with ongoing support needs. One possible way to meet both aims is to consider some changes to payments of benefits within the current scheme that would reduce costs. This is explored in the following options. The options presented below are not the only possible approaches and there may be features of each that could be combined. Option 1 No-fault cover for catastrophic injuries Under this option, no-fault cover would be provided for all persons with catastrophic injuries such as: moderate to severe Acquired Brain Injury (ABI); major spinal cord injury; multiple amputations; burns; or blindness. People with catastrophic injuries would receive lifetime care and support, as well as ongoing income support. For claimants without a catastrophic injury the scheme would be unchanged, that is, a lump sum payment only for those who can demonstrate that another party was at fault. Catastrophic claims would be managed on a social support approach, not through a court process. Claims consultants would become relationship managers who provide ongoing support to the person and their family. There would be no lump-sum compensation for the future care costs; the scheme would meet the claimant s care and support costs as they arise for their lifetime. That means more certainty that the claimant s lifetime needs would be met, but also means there is no lump sum for the claimant to spend as they choose. The scheme could, however, entitle claimants to choose a care-and-support service package that best suits their individual needs. The New South Wales Lifetime Care Scheme allows participants choice in allocation of funds. For example, the participant can chose their own carer, participation in community activities and where to allocate care or home modification funds. The goal is to provide a service that not only addresses the financial burdens of care but also provides the best physical, psychological and emotional outcomes for the participant and their family. Participants would have less need for lawyers; they would not have to prove what caused the accident and there would be less room for dispute about entitlements. It is estimated that a scheme that provided lifetime care and support and periodic income payments on a no-fault basis to those suffering catastrophic injuries, could increase the average break-even CTP premium by between $60-$70 per vehicle per year (if no other changes were made to the existing scheme). South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 16

17 Potential reform options for scheme design Continued These estimates do not taken into account any cost reduction due to limiting the entitlements of severely injured persons whose fault contributed to their injuries. This option provides catastrophically injured motorists with ongoing income support as well as care. Another option is to only provide lifetime care and support on a no-fault basis to all catastrophically injured motorists, but retain the fault-based, lump-sum payment arrangements for replacing lost income. Such an option is estimated to be marginally more expensive, adding $65-$75 per vehicle per year to the average break-even premium. Option 2 A no-fault catastrophic injury scheme combined with a reformed fault-based scheme for non-catastrophic injuries. This option combines the reforms proposed in Option 1 with adjustments to current benefits for lower-level injuries. In our current scheme, compensation amounts are skewed towards lower level injuries. A good deal of the cost of the Scheme is payments for people with minor injuries that claim for non-economic loss and potential future losses. Legal costs are another pressure on the scheme. This option would address those factors. The reforms listed below are based on features of schemes interstate. POTENTIAL BENEFIT REFORMS: (1) Reform of payments for pain and suffering Currently, a claimant who can show just one-week s impairment receives a pain and suffering payment. As discussed above, research from New South Wales 11 showed a significant improvement in rehabilitation outcomes after a change in the law which removed pain and suffering payments for whiplash claimants. There may be a case for changing our current threshold for pain and suffering payments. One possibility is to move from our current points scale to a measure of Whole Person Impairment (WPI), similar to some other states. Pain and suffering payments would be based on WPI evaluations using Australian Medical Association (AMA) guidelines, and only injuries with more than 10% WPI would attract payments for pain and suffering. Medical panels would arbitrate any disputes. Experience in Victoria and New South Wales suggests that this approach has delivered consistency, providing similar compensation for similar impairments. Attachment 1 shows what types of injuries may fall above or below the 10% WPI threshold. While those 10% and below would no longer be eligible for a pain and suffering payment, treatment costs and loss of income would still be covered. This reform could have a broader impact. The present points scale is not limited to road accident cases. A change would affect entitlements to compensation for all negligence claims irrespective of the cause of injury. That is, it goes beyond the CTP scheme and affects public liability and other insurers. It may be that reform of this scale should only affect road accidents or arguably, there is a case for it to apply to all accidents covered by this Act and comment is invited. It is estimated that this option could yield a decrease of $20-$30 in the average break-even CTP premium. (2) Claimants legal fees As discussed, claimant legal costs funded by the Scheme have been increasing. If a claim succeeds, most of the lawyer s fees are paid by the scheme. For minor injuries, these costs can form a significant proportion of the overall payment made for the claim, adding to cost pressure on the scheme. As has been done in Queensland, a possible reform could be that claimants legal fees would not be reimbursed if the benefit paid to the claimant is $30,000 or less, and would be limited to $2,500 if the benefit is between $30,000 and $50, Cameron I, Rebbeck T, Sindhusake D, et al. Legislative change is associated with improved health status in people with whiplash. Spine 2008 Feb 1;33(3): South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 17

18 Potential reform options for scheme design Continued At the same time, the process of making a claim would need to be reviewed to make it as simple and transparent as possible so that claimants do not need to hire lawyers if they do not wish to, subject to adequate protections for the claimant. It is estimated that this option could result in a decrease of up to $10 in the average break-even CTP premium due to decreased legal costs and subsequent reduction in minor claims. (3) Removal of payment for certain services and future care for lower level injuries Currently injured persons can claim payments for free care and household help given to them by family members after the injury, even in non-catastrophic cases. The Queensland CTP scheme does not provide compensation for these services in minor claims. An option could be to restrict entitlement to this form of compensation. The claimant would need to show that this help was needed for at least six hours per week and for at least six months, and that the same kind of service was not needed prior to the injury. This reform recognises that it is reasonable to assume any caring family member would provide at least some of these services in any event. It is estimated that this option could yield a decrease of up to $10 in the average break-even CTP premium. (4) Reduced economic loss compensation The scheme reimburses loss of income caused by the injury, (such as lost wages). Compensation amounts are based on actual past loss of earnings and an estimate of future loss of earnings, but capped at twice the average weekly earnings; that is, high-income earners do not get full replacement of their lost earnings. This option proposes reducing any lump sums for lost earnings to 90% of the claimants average earnings for catastrophic injuries and 80% for non-catastrophic injuries. Given the current high cost of our scheme, motorists may prefer an insurance product that replaces a majority of, but not all of, their lost income in exchange for a lower annual premium cost. Also, the public may prefer a scheme that includes a financial incentive to maximise recovery. It is estimated that this option could yield a decrease of between $10-$20 in the average break-even CTP premium. (5) Medical excess This option proposes setting a medical excess; that is, a claimant would bear some of their own medical expenses (unless eligible to have them paid by Medicare or a private insurer), before becoming eligible to claim any scheme benefits. This excess may reduce the volume of minor medical-only claims and in turn reduce the need for claims management services. The Victorian Transport Accident Compensation (TAC) scheme currently has a medical excess of $564. If South Australia adopted a similar approach, it is estimated that the average break-even CTP premium could drop by up to $10. SUMMARY OF BENEFIT REFORMS If all of the above reforms were combined, it is estimated that they could yield a decrease of between $70-$80 in the average break-even CTP premium. This is due to the combined interaction of all reforms creating even greater savings than the individual reforms in isolation. When combined with the no-fault catastrophic insurance contained in Option 1, the net result could be a decrease of between $10-$20 in the average break-even CTP premium. South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 18

19 Potential reform options for scheme design Continued The following table outlines the specifications for Option 2. Scheme feature Treatment costs Care (non-catastrophic) Care (catastrophic) Economic loss (catastrophic no-fault) Description of feature modeled Reasonable medical and treatment costs. A $564 medical excess per claim (potentially covered by Medicare or private health insurance). Future care requirements paid as a lump sum at settlement. Periodic rather than lump sum payments. Home help and attendant care for services which the claimant is medically unable to perform themselves. Benefits are as approved by case manager for up to 12 weeks and then based on a formal assessment if required for longer. Aids and appliances as recommended by medical provider. For claimants with a catastrophic injury, income replacement benefits are paid on a periodic basis. Benefits are based on the worker s own average weekly earnings with replacement levels set at 90%. The maximum income replacement is capped at 2 x State average weekly earnings (ABS). Income replacement is not provided to claimants who were unemployed or receiving Centrelink payments or other income replacement. Earnings from investments or financial sources alternative to employment are not considered as part of the evaluation of the claimant s own AWE. The benefit continues until: o Pension eligibility age; o death; or o worker returns to work whichever occurs first. Uninsured or unknown-driver accident victims can claim under the Nominal Defendant Scheme, as at present. For some serious offences, a loss of entitlement could be considered, such as no access to income benefits and/or lump sum benefits. Economic loss (non-catastrophic) Economic loss paid at 80% of workers own average weekly earnings as a lump sum. First week not compensated. Non-economic loss Payments based on a fixed scale determined by the level of WPI (0% 100%). No benefit is payable (all) for claimants with physical injury of 10% WPI or less. Maximum award is indexed and set at $300,000 for WPI of 70% or more. Other non-catastrophic damages Voluntary services, consortium, future care and home help are not accessible to claimants with 10% WPI or less. Legal costs No claimant legal fees will be paid if the compensation is less than $30,000; fees will be limited to (non-catastrophic) $2500 if the compensation is between $30,000 and $50,000. Dispute mechanism For catastrophic claimants, initial internal CTP informal review. Impairment disputes directed to medical panel for all claimants. Non-catastrophic claimants, impairment disputes through medical panel. Informal conferencing. Impairment evaluation Premium setting WPI evaluation aligned to AMA guidelines. Secondary psychological impairment is not considered as part of the WPI evaluation. Premium class relativities are set-based on cost-sharing against the class of vehicles involved in the accident if catastrophic claim and costs against the class of vehicle at-fault in the accident if non-catastrophic. South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 19

20 Potential reform options for scheme design Continued Option 3 Fully no-fault scheme This option would remove fault assessment in all cases and would provide periodic payments instead of lump sums, as well as reducing compensation for lower level injuries (and associated legal fees) to contain costs. Income support benefits would be restricted to 18 months for claimants with less than 30% WPI, and 3 years where WPI is between 30% and 50%. Income would be replaced at 90% for catastrophic cases and 80% for others. Persons with up to and including 10% WPI would not be eligible for a pain and suffering payment. Those with WPI over that would receive a fixed sum based on the percentage WPI, up to a maximum of $ for those with 70% or greater WPI. It is estimated that this approach could yield a decrease of between $30-$40 in the average break-even CTP premium. South Australia s Compulsory Third Party Insurance Scheme 2012 Green Paper 20

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